Read the full judgment text of CACV 000143/1995 on BabelCite. This Court of Appeal judgment was delivered on 27 March 1996 before Nazareth VP, Bokhary JA, Liu JA.
Civil appeal – costs – taxation basis – party and party basis vs indemnity or common fund basis – deterrence against opportunistic attempts to circumvent the parties' chosen method of dispute resolution – security for costs – money paid into court – release to successful party's solicitors. The plaintiff was wholly successful before Findlay J and the defendants were wholly unsuccessful in the appeal to the Court of Appeal. The defendants sought indemnity or at least common fund costs, arguing that such an order would deter opportunistic attempts to circumvent the parties' chosen method of dispute resolution. The court held that this would be an extension of the established general practice and declined to make that extension in the present case, as the position was not sufficiently clear prior to the court's decision of November 24, 1995 to justify an exceptional order; the court left open the possibility that the next case of this kind might warrant such a step. The defendants were therefore confined to the usual party and party basis for the costs before Findlay J and of the appeal, and were left to pursue an arbitration award representing the difference between taxed and actual court costs. The court further ordered that the $287,009 paid into court by the defendants pursuant to the order of Mayo JA dated September 27, 1995 as security for the plaintiff's costs of the appeal, together with interest, be released forthwith to the defendants' solicitors, the plaintiff's refusal to join in securing such release being wholly inexplicable. The costs of the day were also awarded to the defendants on a party and party basis, there being no opposition from the plaintiff.
Legal issues: Whether indemnity or common fund costs should be ordered as a deterrent against opportunistic circumvention of chosen dispute resolution method
Outcome: Appeal dismissed; defendants awarded costs on the usual party and party basis; money in court ($287,009 plus interest) ordered to be released forthwith to the defendants' solicitors; costs of the day also awarded to the defendants on a party and party basis.
Cited by 3 cases